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Court of AppealDismissedNot stated in judgment

Mwangi v Macharia & another (Civil Application E100 of 2024) [2025] KECA 1005 (KLR)

Court of Appeal
23 May 2025
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a land judgment because the applicant showed no arguable grounds of appeal and no risk the appeal would become pointless.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by the registered owner of Land Parcel No. LOC.20/Githuri/67, who had lost at trial before a judgment delivered on 24th January 2024. The trial court found that her ownership was subject to a customary trust constituting an overriding interest in favour of the respondents, and ordered the trust dissolved and the respondents' families given shares. She sought a stay of execution and an order restraining the Land Registrar Murang'a from making entries affecting the suit property, asserting an arguable appeal and risk of irreparable harm through alienation. The respondents opposed, contending the application was frivolous, that no arguable grounds were demonstrated, and that any loss was compensable in damages. The Court of Appeal (Lesiit, Ali-Aroni and Odunga, JJAA) restated the twin Rule 5(2)(b) principles: an arguable appeal, and a likelihood the appeal will be rendered nugatory absent a stay. It held that a single arguable point suffices and need not be one that would succeed, but the applicant neither annexed a draft memorandum of appeal nor listed any ground in her supporting affidavit, leaving the Court unable to discern any arguable ground. Nor did she substantiate an imminent danger of alienation or her inability to be compensated by damages. The application was dismissed, with the costs of the application to abide the outcome of the appeal. No decision of the court below was disturbed on this interlocutory application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant demonstrated an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicant did not annex a draft memorandum of appeal and her supporting affidavit did not set out even one ground of appeal; the Court could not discern any arguable ground.

Reasoning

The Court reiterated that a single arguable point suffices and need not be one that would succeed, citing Yellow Horse Inns Ltd and Kenya Commercial Bank v Ombija. However, the applicant failed to annex a memorandum of appeal, and the supporting affidavit listed no possible grounds. Without grounds to weigh against the impugned judgment, the Court could not assess arguability and found none discernible.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The applicant did not demonstrate any imminent danger of alienation of the property by the respondents, nor that she could not be compensated in damages.

Reasoning

The respondents denied any intention to alienate or interfere with the suit property. The applicant adduced no evidence of threatened disposal, and her claimed losses were monetary and compensable. Having failed on both limbs of the Rule 5(2)(b) twin test, the application had to be dismissed.

p. 4

Legal principles established

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  • To succeed under Rule 5(2)(b), an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent a stay.
  • An applicant need not show multiple arguable points; one suffices, and the arguable point need not be one that would succeed.
  • A stay applicant should annex a draft memorandum of appeal or otherwise set out the arguable grounds in the supporting affidavit.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed
  2. 2.The costs of the application will abide by the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court (trial court) / Environment and Land Court not specified
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the trial court judgment

Applicant failed to demonstrate the twin principles of an arguable appeal and nugatory appeal

p. 4

Restraint order against the Land Registrar Murang'a from making entries affecting the suit property

Follows from failure to satisfy the Rule 5(2)(b) threshold

Costs

The costs of the application will abide by the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To succeed in an application under Rule 5 (2)(b) of the Court of Appeal Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this Court, namely: i. An applicant must demonstrate that they have an arguable appeal; and ii. That the intended appeal (or appeal if already filed) will be rendered nugatory if the execution of the decree or order of proceedings is not stayed.
p. 3Rule 5(2)(b) twin threshold
This anomaly could have been cured if the afidavit supporting the application had listed the possible grounds of appeal. A close look at the afidavit does not enlist even one ground. Therefore, we are unable to discern any arguable ground from the material placed before us.
p. 3Failure to demonstrate arguability
The applicant has failed to demonstrate the twin principles necessary. As such, the fate of her application is sealed. It must be dismissed. The costs of the application will abide by the outcome of the appeal.
p. 2Disposition and costs

Issues in the judgment

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minor

The judgment is a certified copy and its text does not state the appeal's case number, the parties' full names, or the neutral citation, limiting identification of the matter.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi v Macharia & another (Civil Application E100 of 2024) [2025] KECA 1005 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1005/eng@2025-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.